False Advertising in Video Games – Aliens, SimCity and Your Wallet

Only time will tell if a court believes a game trailer is deceptive enough to trick a consumer into a purchase they wouldn’t have otherwise made

First, to understand just where any regulation may be coming from, we have to look at a government agency called the Federal Trade Commission and its duty to prohibit “unfair and deceptive acts or practices in commerce.” (All 50 states also have their own “unfair trade” laws, but they are so close to the FTC Act that they are not worth discussing separately.)

The act says, in legalese, that any business who, “in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.”

In plain English, that means that false advertising occurs when a consumer relies on a false claim in an advertisement, and is harmed by their purchase. That means it is not outside the realm of reason to assume that showing a plethora of features and graphics in a preview that don’t exist in the actual game could fit within those parameters. There are no existing cases about a game studio being sued for false advertisement, outside of this Sega/Gearbox case mentioned above, so only time will tell if a court (or more likely, a jury) believes a game trailer is deceptive enough to trick a consumer into a purchase they wouldn’t have otherwise made.

However, all of this is probably for nothing.

Just last April, the Supreme Court of the United States ruled that the entire idea of false advertising was reserved for competing businesses, citing the “zone of interest” that the Lanham Act governs is about “unfair competition.” The Court seemingly shut down any possibility of a consumer class action, saying the protection was not for a “consumer who is hoodwinked into purchasing a disappointing product.” That’s a pretty strange ruling, since the act clearly says “any person who believes that he or she” was injured.

It stands to reason then, that either the attorneys for the plaintiffs in the Colonial Marines case found a new avenue of attack, or the case doesn’t have much of a chance at all. Sega settling doesn’t mean they know they would have lost, it just means they didn’t want to chance anything. So maybe this will be the wakeup call to game studios we’re hoping for.

Much more likely, this will just be mostly ignored by game developers and publishers. Instead of risking any liability with preview footage, devs and publishers will probably just slap a “demo footage” disclaimer at the bottom of their trailers like Sega has offered.

Are we mad the system is broken because we broke it?

While that sucks, we are basically asking for it. A famous example of a player base getting behind, and getting screwed by, an early release game was The War Z. While the promises of a beautiful game kept coming from its developers, the reality of this being an “Early Access” game was devastating to its community. Especially since “Early Access” barely even existed as a concept at this game’s release. No one knew they were buying half a game. Yet features were promised and advertised that just didn’t exist, the devs were horrible and attacked anyone who complained, and Steam wound up removing the game from its catalog. And while that’s all terrible, and the company is surely not good, what does it say about us?

Are we mad the system is broken because we broke it? It’s like a five-year-old coming into my living room, hitting my Xbox with a hammer, and then crying he can’t play Halo. We keep throwing our pre-orders and purchases to companies shelling out garbage year after year, and now, in the ultimate act of brainlessness, we are paying to play beta versions! We are begging to be taken advantage of at this point.

And it’s pretty clear we can’t rely on false advertising laws or lawsuits to solve the problem for us. Believe me, Sega won’t allow another one of these, and the rest of the industry watched also. There will be additional disclaimers, but everything else will remain stagnant. The only way to solve this issue is to vote with your wallets. Stop pre-ordering games to get an extra cloak, don’t buy day one DLC, and, most importantly, don’t buy Early Access games. Or do, and maybe you should fund my Kickstarter of my new game Awesome Boob Wars and Zombies featuring the cast of Game of Thrones. It’s coming, I swear, just send me money first.

Bar Games is a collaboration between Ryan Morrison, a practicing attorney in New York specializing in video game and technology law who is often found answering gaming legal questions on Reddit as “VideoGameAttorney” (Follow him on Twitter!) and Janelle Bonanno, GameFront’s Editor-in-Chief, a recovering intellectual property attorney who is somehow still licensed to practice in New York and New Jersey (Follow her on Twitter!).

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The Supreme Court’s justification for ignoring quality assurance failures is one of the most asinine things I’ve ever read. It’s on par with the GOP stopping the 2000 recount because, in their own words, if it turned out Gore had won then it would mean Bush couldn’t be president.

Seriously, the court straight-up admits that customers can get screwed over yet doesn’t bother to stand up for them using the very legislation that is supposedly in place to help them out. Unbelievable.

Kranion

On August 19, 2014 at 2:40 pm

This has become a major issue in the gaming industry. I remember when Infinity Ward promised dedicated servers in Call of Duty: Ghosts.

Dan

On August 20, 2014 at 10:32 pm

What is “Bar Games” supposed to allude to?

Yep...

On August 21, 2014 at 8:03 pm

You just summed it up there in your last paragraph, people need to vote with there wallets. The problem being that nerds just can’t seem to keep it in their pants until the game is released (and reviewed) anymore, probably because they have a choice now. Unfortunately this advice seems to fall on deaf ears and people seem to prefer raging on the internet about how they’ve been eff’d over with their latest pre-order… Yet do nothing to change their consumer practices!

@Dan (and anyone else wondering): The “bar” in “Bar Games” can refer to three primary things in regards to law:

1. The physical division of a courtroom between it’s working and public areas. That is the divider you see in courtrooms that separate the public (the “audience”) from the people in the trial; the judges, jury, lawyers, etc.

2. The process of qualifying to practice law. In this regards it refers to the procedure by which a lawyer is licensed to practice their trade in any given jurisdiction.

3. The legal profession itself. Pretty self-explanatory. “The Bar” can refer to the entire legal profession, but you can also add modifiers like the “tort bar” for lawyers specializing in civil suits.

In this case, “Bar Games” like refers to the third definition, since the articles discuss law in relation to gaming. Hence “games bar” or “bar games”.

Javin

On December 16, 2014 at 10:29 am

Excellent write up, but my one problem is that it’s not our fault! There are some early access games out there (Kerbal Space Program, Space Engineers, 7 Days to Die, etc.) that are absolutely amazing, and are the gems we’re hoping for. I think the basic rule of thumb should just be, don’t buy into any early access/beta/anything offered by EA or Peter Molyneux.

Now a question: So with this supreme court ruling, does this now expand beyond the gaming industry? If a company sells, for example, a kiddy pool with pictures of a teenager wading through a chest deep pool, but then inside the box is a bucket that a toddler wouldn’t fit in, would any false advertising suits have to originate from a competing company now? Have we, as consumers, just be COMPLETELY cut out of the protections from false advertising ALL TOGETHER?

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